R v Douglas

[1996] QCA 560

[1996] QCA 560

COURT OF APPEAL
McPHERSON JA
DOWSETT J

WHITE J

CA No 416 of 1996
THE QUEEN
v.

LLOYD NORMAN GEORGE DOUGLAS

BRISBANE

..DATE 12/11/96

JUDGMENT
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DOWSETT J: The Attorney-General appeals against a sentence imposed in the District Court at Maroochydore in respect of an offence of maintaining a sexual relationship with a child under the age of 16 years with the circumstance of aggravation that unlawful carnal knowledge had taken place.

The complainant was aged 12 years at the relevant time although it is said that she was, at least physically, very advanced for her age. The respondent, the accused, was born on 10 May 1961 and is therefore presently 35. The offence was committed between 30 October 1995 and 19 May 1996. He was 34 at the time.

He was an electrical contractor and in that capacity, was admitted to the home of the parents of the girl for the purpose of performing work. It would seem that she was initially attracted to him and made advances, perhaps prompted by the fact that he winked at her. They chatted and she told him her age. It is said that she became infatuated with him and secret meetings, telephone calls and letters followed.

The respondent invented pretexts for returning to the house and, at some stage, the relationship developed a physical side include touching, oral sexual relations and sexual intercourse. In December last year the complainant's mother discovered a letter which had been written by the complainant to the respondent and as a result, forbade the girl from posting it.

She spoke to the respondent, asking him not to encourage the child and pointing out her age. In March of this year the respondent was, again, performing work at the home and on this occasion the child made entries in her diary about an incident

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which occurred at that time.

Her parents were again suspicious and read the diary and again forbade her from seeing the respondent. They again contacted him and warned him off, as it is said in submissions, in no uncertain terms. He denied any wrongdoing. The relationship continued. In May of this year, the complainant told her parents the extent of the relationship and they reported the matter to the police.

The respondent pleaded guilty at the trial, and this was to be recognised in the sentence. In sentencing him the learned sentencing Judge took cognisance of the fact that he had taken advantage of the girl's immaturity and infatuation with him. He took account of the seriousness of the misconduct and said that it was not diminished by the fact that he had been pursued by the girl. He took account of the substantial disparity in ages and of the alleged remorse of the respondent. He took account of the fact that the child was not in his care and that he was not in a position of special authority towards her.

He accepted that a period of imprisonment would cause the respondent to lose his business and possibly his personal relationship with his fiance. He said that personal deterrence was not relevant because it was thought unlikely that the respondent would offend again. However, His Honour said that he took account of the need for general deterrence.

In the end, he treated the case as exceptional because of the particular circumstances and the apparent maturity of the child.

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It should also be recorded that the respondent had no prior

convictions and had been in regular employment.

Notwithstanding the remarks made by His Honour, I find it difficult to see any basis upon which this matter should be treated as being different in substantial degree from other cases of this kind which generally result in imprisonment. The only two bases advanced in argument before us were firstly, the absence of any special relationship of trust and secondly, the persistence of the girl in persuading the respondent.

As to the first, it is true that the respondent was not a member of the family or household in which the girl resided but he was admitted to the house and first contacted her as a result of his being called there in his trade capacity. Further, he returned on subsequent occasions for real or imagined reasons associated with his trade. It may be that such breach of trust was not as serious as occurs in some cases but I do not accept that there was no breach of trust involved in all of this. As to the girl's persistence, it is, perhaps, fortunate that 12-year-old girls do not generally behave in this way but when they do, it behoves any adult to resist their blandishments and to put them in proper perspective.

There was nothing about this man's association with the girl or her family which led inevitably to his having continued contact with her. This is something which he chose for himself and he chose with knowledge of all of the facts. If temptation was put in his way, he certainly made no attempt whatsoever to avoid it. I find it impossible to distinguish between this case and a

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variety of other cases to which we have been referred. Those cases have generally proceeded upon the basis that where a man of mature years allows himself to fall into a sexual relationship with a young girl, the consequence to him will be a period of imprisonment.

Where he has no previous convictions it may be that the Court will be minded to suspend the sentence after a relatively short period but there is, in the cases, little or no encouragement for the view that a person convicted of such an offence will escape prison absolutely.

I need, I think, refer only to two of the cases which were mentioned in argument. The first is the decision of this Court in H, CA 442 of 1993.

That was a charge of maintaining a sexual relationship with a circumstance of aggravation. The sentencing Judge imposed a period of imprisonment of two years. The respondent was aged 30 years and the complainant 13 years. She was a foster child of the appellant's parents-in-law with whom he, his wife and children lived. The relationship involved intercourse on a regular basis between June 1992 and November of that year. The complainant became pregnant, although this was terminated.

There was a plea of guilty. That offender had been previously convicted of a sex offence against the same complainant when she was aged 10. A non-custodial order was made on that occasion. It was not contradicted that the complainant had become infatuated with him and had made advances which he had been

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unable to resist.

On appeal, the sentence was increased to four years. It was clearly a more serious case than the present, and the respondent had a previous conviction in connection with the same girl. Nonetheless, that accused had also been pursued by the complainant and the relative ages were similar.

The second case is the decision in Morgan, a decision of this Court on 4 October this year, again on an Attorney's appeal, the offence being maintaining a sexual relationship with a circumstance of aggravation.

In that case, a sentence of three years' imprisonment, wholly suspended for a period of four years, was imposed. The complainant was aged between 13 years 11 months and 14 years

9 months at the time of the offence. She and her family had moved into a block of units (where the respondent lived) as she attended a special school.

The relationship consisted of consensual intercourse, two or three times per week. It was interrupted when the respondent formed a relationship with a woman but resumed when that relationship ended. The relationship was finally terminated after the girl told her parents.

When interviewed by police, the offender said that the complainant had tried to seduce him. He had told her to go away because of her age. He subsequently made full admissions. He

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had a substantial criminal history and was aged 39 years. He was sentenced to imprisonment for three years with a recommendation after 12 months.

In all of the circumstances, it seems to me that the period of imprisonment of three years was probably a sentence calculated reasonably to reflect the seriousness of this offence. However, I am unable to see any circumstances justifying the total suspension of that sentence.

The offence called for a penalty which marked community disapproval of the conduct of a man who exploits a young girl, no matter how precocious she may be. I cannot see that any sentence could fulfil that function effectively unless it resulted in the offender serving a significant period of imprisonment.

In my view, in the present circumstances, that result would be achieved by a sentence of three years with a provision that the sentence be suspended following the prisoner's serving a period of 12 months, the effective period of the suspension being five years from the date of the sentence.

In the present circumstances, I am minded to allow the appeal and to substitute a sentence in that form.

McPHERSON JA: I agree with what Mr Justice Dowsett has said.

WHITE J: I agree with the orders proposed and the reasons also

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of Justice Dowsett.

I would just add a few remarks of my own. Whatever indulgence might have been accorded to the respondent had only the first period of the relationship with the child occurred, that, in my view, was entirely lost when he was clearly warned by her parents on two separate occasions and reminded of her age. He persisted, nonetheless, in returning to the relationship and did not desist until the child's mother found out that it had been continuing.

In those circumstances, I think, apart from the other matters to which Justice Dowsett has referred, that the learned sentencing Judge's discretion miscarried when he did not require the respondent to serve any part of the sentence imposed, and I would agree with the orders proposed by His Honour.

McPHERSON JA: The appeal will be allowed, but the sentence of three years' imprisonment will stand. The order suspending the sentence will be set aside. In lieu, the sentence will be suspended after the applicant has served a period of

12 months' imprisonment. The operative period will remain at

five years.

Now, is a warrant necessary?
MRS CLARE: Yes, a warrant is sought, Your Honour.
McPHERSON JA: Anything to say on that?
MR GARDINER: I ask that it lay in the Registry for a week, Your

Honour, to enable him to surrender himself.

McPHERSON JA: A warrant will issue for the arrest of the

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applicant but it is ordered that it lie in the Registry for a

period of one week or until further order.

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